Is Foreign Aid Solely Up to the President?

According the US Department of Justice, it is the US president’s prerogative
alone whether Israel’s nuclear weapons program triggers Arms Export Control
Act laws governing US aid to foreign nuclear weapons states.

In a 52-page
motion to dismiss, (PDF) Justice Department Trial Attorney Michell R. Bennett
outlined the defendants’ legal argument for why US citizens cannot challenge
massive foreign assistance packages to Israel that appear to violate the Symington
& Glenn Amendments, originally added to the 1961 Foreign Assistance Act
in the mid-1970s. The intention of the amendments, according to one of the authors,
Senator Stuart Symington, was to preclude US taxpayer subsidization of nuclear
states that refused to join the Nuclear Non-Proliferation Treaty. "If you
wish to take the dangerous and costly steps necessary to achieve a nuclear weapons
option, you cannot expect the United States to help underwrite that effort indirectly
or directly."

"The statute, therefore, makes the termination of US foreign assistance
contingent, in the first instance, upon a determination by the President that
a country has engaged in conduct specified in the statute…The statute permits
but does not require that the President make such a determination. Moreover,
the statute does not limit the President’s discretion to decide whether, how,
and when to make such a determination." (PDF pages
15-16)

Per official public figures, on an inflation-adjusted basis the US has provided
more than a quarter-trillion dollars to Israel since the country was established,
making the it the top recipient of US foreign aid. The aid, which is largely
the result of Israel lobbying
rather than pursuit of any US national interest, is particularly costly
in terms of US employment. It provides only 2,080
jobs per billion spent, vs 5,750 per billion in potential infrastructure-related
jobs or simply not collecting taxes for unlawful ends, which would have a bigger
overall impact on the economy. But citizens concerned about Israel’s development
and proliferation of nuclear weapons technology, and other bloodier violations
of US and international law, have no standing to sue because the amendments
did not specifically allow for judicial review, according to the US Department
of Justice:

"On the whole, these waiver provisions recognize that, if and when
the President first determines that a country has engaged in conduct specified
in the statute, it is the province of the President and Congress to determine
whether the United States should continue providing foreign assistance to that
country. No provision of § 2799aa-1 authorizes or contemplates judicial review
of determinations made by the President or exercises of the waiver authority
by the President or Congress."

Indeed, according to Bennett, federal judges should just stay out of the matter
entirely because Congress, which passed but has not yet rescinded Symington
& Glenn, and the President, who once told the late Helen Thomas he did not
want to "speculate"
about whether Israel has nukes, keep passing and signing into law massive taxpayer-funded
aid programs.

The lawsuit, filed by IRmep’s director in August, 2016 and amended
in November (PDF) claims that the Obama administration has unlawfully implemented
a 2012 agency-wide gag order blocking public release of information about Israel’s
nuclear weapons and subverting the Freedom of Information Act in order to seamlessly
continue presidential violations of Symington & Glenn that have been ongoing
since 1978. On November 28, the Plaintiff filed a motion for a
preliminary injunction (PDF) to freeze both enforcement of the gag order
and billions in pending US foreign aid payments to Israel.

It remains to be seen whether federal judge Tanya Chutkan, who has witnessed
firsthand the great—and formerly inexplicable—lengths to which government
agencies go to fight release of even aged, unclassified information about
Israel’s expansive nuclear weapons program, will be impressed with such Justice
Department arguments.